September 9, 2011

Concerns about crowded prisons and Pepper in DOJ annual letter to US Sentencing Commission

A very kind reader sent me a copy of the letter sent by the Justice Department's Criminal Division to the US Sentencing Commission commenting on the operation of the federal sentencing guidelines and other matters. This eight-page letter has a number of interesting facets, but these two passages struck me as especially blog-worthy:

Prisons are essential for public safety. But maximizing public safety can be achieved without maximizing prison spending. A proper balance of outlays must be found that allows, on the one hand, for suffcient numbers of investigative agents, prosecutors and judicial personnel to investigate, apprehend, prosecute and adjudicate those who commit federal crimes, and on the other hand, a sentcncing policy that achieves public safety correctional goals and justice for victims, the community, and the offender. The Department of Justice has been under a general hiring freeze for some time, which means that vacant executive positons of all kinds — including investigators, prosecutors, forensic analysts, and more — cannot be filled. At the same time, the federal prison population - and therefore prison expenditures - have been increasing. In fact, the federal correctional population has jumped by more than 7,000 prisoners this fiscal year, the equivalent of about four prisons worth of inmates.

This is all relevant to federal sentencing, because prison spending to support these population increases has been rising for years and the prison population remains on an upward trajectory. Given the budgetary environment, that trajectory wil lead to a fuiiher imbalance in the deployment of justice resources. While this is a long term problem that requires a long term and systemic solution, there are also immediate concerns. As former Bureau of Prisons Director Harley Lappin testified before the Commission in March, the Bureau of Prisons is currently operating at 35% over rated capacity.... Even more troubling, former Director Lappin testified that the Bureau of Prisons estimates that its inmate population wil continue to grow by about 5,000 prisoners a year for the foreseeable future....

While we firmly believe that imnate rehabilitation and improving the rate of successful prisoner reentry are critical obligations for any correctional system, the Tapia court made clear that the prohibition on selecting a term of imprisomnent based on rehabilitative considerations — a prohibition put in place as part of the overall vision and strcture of sentencing under the SRA that discounts offender characteiistics — must remain a hallmark of federal sentencing post-Booker. At the same time, however, in Pepper, decided earlier in the term, the Court endorsed the notion that post-Booker sentencing must focus as much on the offender, his individual background, and his need for services and rehabilitation as on the offense committed.... This and other post-Booker jurisprudence now place an offender's personal history — including socio-economic status, educational achievement and family and community ties — on equal footing as sentencing factors with the offense committed.

We believe these two lines of thought and doctrine — one that insists that the length of federal imprisomnent terms be based primarily on the offense and criminal history, and one that insists that offender characteristics and rehabilitation be co-equal determinants of all aspects of sentencing — conflict with one another and must be reconciled in order to create a coherent, national system. We believe the post-Booker sentencing regime, which gives sentencing court's an unbounded menu of sentencing principles from which to devise the ultmate sentence, wil continue to lead, if not reformed, to unwarranted disparities in sentencing outcomes. Together with the Commission's study exposing an increase in unwarranted racial and ethnic disparities in post-Booker federal sentencing practice, we have real concerns that current policy is not meeting the long terms goals of the federal criminal justice system, including the goals of fostering trust and confidence in the criminal justice system and eliminating unwarranted disparities in sentencing.

Comments

Thank you for posting this.

Posted by: beth | Sep 9, 2011 1:04:07 PM

"We believe the post-Booker sentencing regime, which gives sentencing court's an unbounded menu of sentencing principles from which to devise the ultmate sentence, wil continue to lead, if not reformed, to unwarranted disparities in sentencing outcomes. Together with the Commission's study exposing an increase in unwarranted racial and ethnic disparities in post-Booker federal sentencing practice, we have real concerns that current policy is not meeting the long terms goals of the federal criminal justice system, including the goals of fostering trust and confidence in the criminal justice system and eliminating unwarranted disparities in sentencing."

Well that's cool. It only took the Sentencing Commission six and a half years to find out what Booker was going to do, although some of us knew the day it was decided.

And yes, that's where things will stay "if not reformed."

Now let's see. Is there an agency that might point Congress toward the needed reform? Like the return of mandatory guidelines? Why yes there is!!! And what would that be?

Yikes. It's the self-same United States Sentencing Commission.

Posted by: Bill Otis | Sep 9, 2011 3:26:10 PM

'The Department of Justice has been under a general hiring freeze for some time,... At the same time, the federal prison population - and therefore prison expenditures - have been increasing.'

Well, I'd interpret that to mean that they (the DOJ) are putting more people away using less investigative resources which corresponds with less government too. Which, if your a fiscal conservative, is a good thing, right?

Posted by: james | Sep 9, 2011 4:23:19 PM

nice. but what i found very interesting was this little tidbit!

"As former Bureau of Prisons Director Harley Lappin testified before the Commission in March, the Bureau of Prisons is currently operating at 35% over rated capacity.... Even more troubling, former Director Lappin testified that the Bureau of Prisons estimates that its inmate population wil continue to grow by about 5,000 prisoners a year for the foreseeable future...."

Isn't the calif prison system at like 40% or so and in the middle of a nice big FEDERAL FORCED reduction! i'm gonna laugh my head off of calif decided to get even by helping their citizens in federal prison file the same suit against the feds.. now that WOULD BE FUNNY!

Posted by: rodsmith | Sep 9, 2011 8:30:35 PM

nice but what i found very interesting was this little tidbit!

"As former Bureau of Prisons Director Harley Lappin testified before the Commission in March, the Bureau of Prisons is currently operating at 35% over rated capacity.... Even more troubling, former Director Lappin testified that the Bureau of Prisons estimates that its inmate population wil continue to grow by about 5,000 prisoners a year for the foreseeable future...."

isn't the calif prison sytem in the middle of beginning a massive FORCED FEDERAL reduction of prisoners. Now wouldn't it be just a killer if calif decided to provide their citizens who are residently federal prisoners bring the same suit againt the federal system! Now wouldn't that be funny!

Posted by: rodsmith | Sep 9, 2011 8:35:39 PM

These recommendations are from the Criminal Division. There are two recommendations in the above excerpt: (1) reduce federal prison expenditures and populations and (2) reduce judicial discretion in sentencing.

Recommendation (1) is designed to protect the jobs of those in the Criminal Division. This is ironic because the people in the Criminal Division love locking people up (even though their actual duty is to further justice) but now they are saying, "Wait but don't lock people up for so long that it cuts into our budget!"

Recommendation (2) is designed to protect the power of those in the Criminal Division because judicial discretion in sentencing takes away power from prosecutors.

These recommendations are about money and power for the criminal division. They may or may not nevertheless make sense, but let's not forget the impetus for this letter.

Posted by: James | Sep 9, 2011 8:55:02 PM

Exactly correct James. The DOJ's fear of advisory guidelines is not unwarranted disparity -- it's fear over loss of power and control.

The DOJ (i.e. Prosecutors) believe that they are the only ones who should determine when a non-Guideline sentence should be given, and that they are the almighty determinants of a just sentence. Any sentence the DOJ doesn't like is labeled by them to be an "unwarranted disparity." After Booker, that's not how the system works (nor should it), and they don't like it.

Posted by: DEJ | Sep 9, 2011 11:00:07 PM

DEJ --

1. I'm delighted to hear that in the post-Booker world, there are no unwarranted disparities. Or, if by chance you think there ARE unwarranted disparities, what changes in the system do you recommend to remedy the problem?

2. "Booker has created a much-improved system."

It's moved things back toward the luck of the draw, sure, by creating more running room for tough judges to be tough and soft judges to be soft. Whether one views that as an improvement depends on how one does in the judge lottery. It also might depend on whether you view luck of the draw as a good thing in a system where the ideal is "equal justice under law."

3. "The DOJ (i.e. Prosecutors) believe that they are the only ones who should determine when a non-Guideline sentence should be given..."

Well not exactly, DEJ. Defense lawyers routinely file motions suggesting that THEY should determine when a non-guidelines sentence is appropriate, and, indeed, recommending specifically what that sentence should be, generally as little as they think they can get away with without getting laughed out of court on sentencing day.

"...and that they are the almighty determinants of a just sentence."

I think you mean to say determinERS, determinants being factors like criminal history and role in the offense and stuff. As to "almighty"........ummmm, weren't you just saying something about hyperbole?

Prosectors think they have a role, sure. Do you dispute that?

4. "Any sentence the DOJ doesn't like is labeled by them to be an 'unwarranted disparity.'"

That's just factually not so. For example, the government's objection to the scandalously low sentence of the hyper-corrupt Vincent Fumo had zip to do with disparity. What it had to do with was the district judge's improperly giving away the store, as the Thrid Circuit agreed, see Doug's entry roughly three weeks ago,
http://sentencing.typepad.com/sentencing_law_and_policy/2011/08/court-orders-resentencing-of-ex-pennsylvania-state-senator.html.

Posted by: Bill Otis | Sep 9, 2011 11:42:23 PM

The Sentencing Reform Act includes rehabilitation as a goal of sentencing. That's Congress talking, not the Sentencing Commission. Lots of sentencing goals are at odds with each other -- deterrence and retribution, for example. (Do you give celebrities higher sentences because you'll get more deterrence, e.g.?) DOJ has always wanted less judicial discretion. But it is not clear to me that judicial discretion creates more racial disparity than prosecutorial discretion, police discretion, and even victim discretion. Whatever sentencing system we have, somebody is going to be making judgment calls that impact sentencing. (Recall cases under the guidelines in which police substituted crack for powder in undercover operations, or insisted on paying in part with guns, in order to raise the guideline sentence). I'd rather it were the courts. At least the courts do it in public, in writing, and we can appeal it, study it, and complain about it.

Posted by: Linda Meyer | Sep 10, 2011 12:49:32 PM

Linda Meyer --

"I'd rather it were the courts."

And that's the flaw in your analysis. It's not going to be the prosecutor OR the court. Under Booker and its progeny, it's going to be the prosecutor AND the court. The more the sources of unwarranted disparity, the more unwarranted disparity you'll get. And that, as you seem to agree, is a bad thing.

Posted by: Bill Otis | Sep 10, 2011 2:09:55 PM

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